Like most libertarians—and most sane Americans—David Friedman looks upon the Trump v. Harris contest with dread:

My opinion of the election is “a plague on both your houses.” Kamala Harris is an extreme representative of an ideology I have opposed for most of my life. Donald Trump has three major positions on two of which, immigration and trade, he manages to be even worse than his opponent. While I have some sympathy for his views on the third [foreign policy], I do not trust him to execute a consistent and competent alternative. His disinterest in whether what he says is true, extreme even for a politician, I find offensive.

…but then comes this confession:

That is my intellectual view of the matter. It is not my emotional view. Reading news stories and observing the effect on my feelings, I note that I am reacting like a Trump partisan. Poll results that look good for him make me happy, poll results that look bad for him make me sad.… If Harris wins I will feel disappointed. If Trump wins I will feel relieved, at least until the first outrageous thing he does.

Many such cases!

David Friedman’s libertarian bona fides should be beyond question (for my money, his Machinery of Freedom remains the best introduction to radical libertarianism). Even so, in some libertarian circles, what he’s let slip—an “emotional” preference for a Trump victory?!—could get you read out of polite company.

As it happens, I think you can make an intellectual case for Friedman’s forbidden feelings. And since I think polite company is overrated, I’m going to make that case here.

To be clear, this isn’t an argument about whom libertarians should root for, much less vote for. Like Friedman, I believe that when confronted with a choice between two people who have absolutely no business being president, sitting it out may be the most responsible option. Instead, it’s an argument about which of two electoral outcomes libertarians should dread more, and it focuses on the administrative state and the courts.*

*I’ve left foreign policy out of this assessment because, like Friedman, I lack confidence that Trump’s occasional paeans to restraints are a reliable guide to what he’d actually deliver. 

“Our Democracy,” such as it is, has degenerated into a judicial-executive dyarchy. We’re mostly governed by people nobody voted for: bureaucrats and judges. Who gets to be president matters because he or she makes judicial picks, staffs the commanding heights of the regulatory state, and uses “the pen and the phone” either to extend bureaucratic control—or gum up the works. It shouldn’t be that way, but it is.

A Democratic victory on Tuesday means that the party of government retains administrative power and gets four more years to enact its ideological manias on an unwilling public. Because I believe that would be very bad indeed for individual liberty, free markets, and limited government, I can’t pretend to be sanguine about the prospect.

In September I became the fourth director of Cato’s Robert A. Levy Center for Constitutional Studies. This is the biggest honor of my professional life, and it is also a tremendous responsibility. The Levy Center (or CCS, as we call it here) has been shaped by the three directors who came before me. And those three directors have also served as professional mentors to me over the last nine years. The best way to explain why CCS is so unique and so important is by sharing what I’ve learned from each of its previous three directors: Roger Pilon, Ilya Shapiro, and Anastasia Boden.

First, Roger Pilon. Roger founded CCS and led it for 30 years. Roger was the CCS director when I interned here in 2015 and when I served as a legal associate in 2016–17. When Roger founded CCS, the main philosophical dispute in constitutional interpretation was framed as “judicial activism” versus “judicial restraint.” Roger founded CCS to advocate for a then-radical third approach: judicial engagement. As Roger put it, CCS was founded “to encourage judges to be more engaged than many conservatives believed proper, and to locate the authority for that engagement in the Constitution itself, properly understood.” 

Roger made CCS the intellectual home of the idea that the Constitution strongly protects personal liberty in all its facets, including economic liberty. As Roger summed it up, the goal was “to help change the climate of ideas to one more conducive to liberty under limited constitutional government.”

On my first day as a legal associate, Roger sent me a reading list. If I had been starting at a law firm, such a list might have comprised style guides and legal hornbooks. But Roger instead sent works of legal theory and political philosophy. Thanks to Roger’s example, I’ll always remember that CCS is fundamentally about ideas—about legal and political philosophy put into application. The most important test for everything we do at CCS is whether it will help to advance the acceptance of those ideas by both the courts and the general public.

Next, Ilya Shapiro. Ilya made Cato’s amicus brief program what it is today. It was under Ilya that Cato began its practice of hiring four legal associates (recent law school graduates) per year to help draft amicus briefs that would be filed in state and federal courts across the country. Writing more than 30 amicus briefs per year with roughly a half-dozen lawyers is an enormous undertaking, but Ilya made it look easy. To run the amicus program, Ilya had to make many quick but informed decisions about which cases to file in, what arguments to make, and how much time to devote to each brief. By his example, Ilya taught me the judgment and organizational practices needed to make these decisions and run this program. As I now begin to manage Cato’s amicus program myself, I know that the task is feasible only because I watched Ilya do it firsthand.

Perhaps even more important, Ilya taught me how to write a Cato amicus brief. Again, he taught by example. As a legal associate, I was tasked with writing the first draft of several amicus briefs. And like most recent law school graduates, I thought I could show off by sprinkling in legalese, jargon, Latin phrases, and obscure words found deep in my thesaurus. As my editor, Ilya dutifully took out all of them. It was during my year as a legal associate that I learned the point of our briefs is to be understood, not to show off. 

I saw how Ilya transformed my drafts from middling to crackling. Short, snappy sentences. Section headings of just a couple of words. Direct language. And arguments that can be understood not just by lawyers, but by any educated layperson. As I now take on the role of final editor for Cato’s briefs, I still have Ilya’s editorial voice in my ear.

Finally, Anastasia Boden. I was fortunate to work with Anastasia when we were both attorneys at the Pacific Legal Foundation. When she came over to Cato and we were professionally reunited, she reinvigorated our amicus brief program with a litigator’s perspective. Yes, our briefs are about ideas. But they’re also filed in real cases involving real people. These human stories help explain why the ideas and principles we argue for matter. And these human stories deserve pride of place in amicus briefs just as much as they do in the parties’ briefs. Anastasia’s keen instincts as a litigator gave her a sense of what grabs a judge’s attention and what puts them to sleep. For the rest of my career, I will never be satisfied with a brief’s opening paragraph unless I think Anastasia would be satisfied with it.

My hope as CCS director is that I can put into practice what I have learned from each of my predecessors. My mission is for CCS to produce accessible legal writing that is both principled and personal. Our briefs and papers should explain the philosophical and historical case for our view of the Constitution. They should demonstrate the human cost of departing from that vision. And they should clearly communicate that message to both judges and the general public alike.

I’m keenly aware that Cato’s CCS fills a role that no other legal institution inhabits. We have filed amicus briefs defending a constitutional right to same-sex marriage and a constitutional right not to be forced to create speech endorsing a same-sex marriage. We’ve aligned with conservative legal groups in economic liberty and Second Amendment cases, and we’ve aligned with progressive legal groups in police accountability and Fourth Amendment cases. 

We defend every constitutional right on an equal footing, and we collaborate with anyone willing to defend that right with us. That has been CCS’s guiding principle since it was founded, and I won’t be the director who changes that approach.

Going forward, what do I see as the likely focus of CCS? As always, we will meet the moment with whatever legal arguments are most needed. In this moment, officeholders of both parties seem more interested in using political power to fight in the culture war than in getting the government out of the culture war. The CCS has opposed both “conservative” efforts to compel speech by private tech companies and “progressive” efforts to compel speech by private retailers. The CCS has opposed both a Texas prosecutor’s misguided crusade against a risqué movie and campus regulators’ overzealous suppression of edgy speech. 

Whenever the government tries to put a thumb on the scale in the free arena of public debate, Cato will step in and defend the principle of government neutrality.

In addition, this era continues to see the leaders of both parties try to circumvent Congress and erode the separation of powers. Cato has opposed both the Trump administration’s attempt to build a border wall without congressional authorization and the Biden administration’s attempt to waive student loan debt without congressional authorization. I’m immensely proud of this record, and it will continue no matter which party wins the next election.

Does the work that we’ll be doing at CCS sound exciting to you? If so, I’d love for you to join us. If you’re a lawyer with three or more years of legal experience, apply to be a legal fellow, which is a permanent scholar position at Cato and the position that I held for the last four years. If you’ll be graduating law school in 2025 or if you’re a lawyer with fewer than three years of experience, apply to be a legal associate. That’s a one-year position that will allow you to draft amicus briefs across all of Cato’s issue areas. And that was my first job out of law school. Finally, if you’re a current law student, apply to be a summer, spring, or fall legal intern. That was the first position I ever held at Cato. And the rest is history.

My friend and former boss at the Institute for Justice, Chip Mellor, passed away earlier this month, and I’m still trying to process the loss. Chip was a towering figure in libertarian circles. Besides founding one of the nation’s premier public interest law firms together with now-Arizona Supreme Court Justice Clint Bolick, Chip mentored a generation of libertarian constitutional lawyers and activists whom he inspired with his unflagging optimism, uncompromising standards, and clarity of vision. As a tribute to his memory, I’d like to share a few personal anecdotes that are special to me and will hopefully provide some sense of Chip’s enormous contribution to the cause of freedom.

1. Be willing to lose. When Chip offered me a job at IJ in the spring of 2000, I was a young litigator coming off of a judicial clerkship in Washington, DC, and four years at a large law firm in my home state of Texas. Having realized that a career in BigLaw was not for me—and having spent a year watching lawyers from DOJ and the DC Attorney General’s office advocate for maximum government power with minimum accountability—I yearned to join IJ’s “merry band” of bureaucrat-suing litigators. 

Following several rounds of interviews, Chip took me out for dinner to make the offer. As our dishes were being cleared away, he fixed me with his trademark fatherly football-coach gaze and told me something I’ll never forget: “If you take this job, you’ll have to make peace with something you won’t like.” “What’s that?” I asked. “Losing,” he said. 

Of course, Chip was not warning me that IJ had low standards or that its lawyers are more complacent than others—on the contrary. Instead, what Chip sought to convey was that he, Clint, and other trailblazing IJers like communications guru John Kramer had chosen a set of institutional goals that were the professional equivalent of summiting Mt. Everest in a raging blizzard without supplemental oxygen—on a unicycle. Thus, no matter how hard we worked, no matter how persuasive our arguments, and no matter how just our cause, we were going to lose cases—including ones we deserved to win on the law, the facts, and the quality of our advocacy. And boy, was he right. 

One reason for that is because, like Cato, IJ seeks to overturn longstanding Supreme Court precedent that arbitrarily divides constitutional rights into two distinct categories consisting of purportedly “fundamental” rights like free speech and religion that are entitled to meaningful judicial protection, and nonfundamental “liberty interests” such as occupational freedom and property rights that receive no meaningful judicial protection. Utterly arbitrary and textually baseless as that dichotomy is, most modern judges—including even self-professed originalists—remain deeply committed to it and unwilling to seriously engage contrary arguments.

Bottom line, Chip understood that if you’re a libertarian litigator trying to overturn decades of unabashedly government-empowering constitutional malpractice and you aren’t losing, then you simply aren’t bringing the right cases. Amen to that.

2. The “privilege” of earning an honest living. When Chip and Clint created the Institute for Justice in 1991, their most ambitious goal was to resurrect the Fourteenth Amendment’s Privileges or Immunities Clause as the primary source of protection for individual rights against state and local governments—including particularly the right of occupational freedom. Understanding what an ambitious goal that was (and remains!) requires a bit of history.

The Fourteenth Amendment was ratified in 1868 in response to Southern states’ oppression of newly freed blacks and their white supporters following the Civil War. It prohibits states from infringing the privileges or immunities of United States citizens and from denying any person due process of law or equal protection of the laws. Those terms are necessarily broad and imprecise because the nature of the evil they were meant to combat—again, the attempt to keep a whole class of people in a state of constructive servitude—was itself all-encompassing and constantly evolving. 

Unfortunately, the Supreme Court largely eviscerated the Privileges or Immunities Clause in the aptly named Slaughter-House Cases (1873), which involved a challenge to a Louisiana law that required butchers to do their work within a designated area while paying fees to politically connected private interests for the privilege of using their facilities. A sharply divided 5–4 Court rejected the butchers’ argument that occupational freedom is among the privileges or immunities of American citizenship and held instead that the term referred only to a narrow and idiosyncratic set of “national” rights such as the ability to call for the protection of the federal government when on the high seas. 

Virtually everyone now agrees that Slaughter-House was wrongly decided, and IJ, Cato, and others have waged a decades-long campaign to persuade the Court to overturn it. But the justices have repeatedly rebuffed those efforts and continue to hold that occupational freedom is a nonfundamental right “protected” only by the almost infinitely permissive rational basis test under the controversial theory of substantive due process.

In 2010, however, an unexpected opportunity arose to reconsider the Privileges or Immunities Clause in a setting not foreclosed by Slaughter-House: gun rights. That opportunity was created by the court’s 2008 decision in District of Columbia v. Heller (2008) (litigated by me, Cato chairman emeritus Bob Levy, and Alan Gura), which held that the Second Amendment prohibits the federal government from infringing the right to keep and bear arms. But because the Bill of Rights does not apply directly against the states, Heller left open the question of whether the Fourteenth Amendment likewise protects gun ownership from infringement by state and local governments. The answer to that question is plainly yes, and it is equally clear from the relevant history that the right of armed self-defense is among the privileges or immunities of American citizens. 

And that’s precisely how Alan Gura—who had successfully argued Heller two years before—presented the issue to the Supreme Court in McDonald v. City of Chicago (2010), which challenged a municipal ban on handguns. Rejecting the conventional wisdom that he should lead with substantive due process—a legal doctrine long denigrated by conservatives in particular—Alan chose instead to put his faith in text, history, and confidence that the justices would be committed not just to reaching the right result, but to doing so according to the best reading of the Constitution. 

Whoops.

At oral argument, it became clear immediately that eight of the justices had zero interest in revisiting Slaughter-House or taking a fresh look at the Privileges or Immunities Clause. Indeed, Justice Scalia even mocked Alan for his presumption in asking the court to reverse its own manifestly erroneous precedent: 

Well, I mean, what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it’s wrong, I have—even I have acquiesced in it.” 

In the end, only Justice Thomas—in a magnificent but solo concurrence—would choose the correct path of protecting the fundamental right to own a gun via the Privileges or Immunities Clause rather than substantive due process.

Walking out of the Supreme Court after the McDonald argument was the only time I ever saw Chip Mellor look truly deflated. The justices’ collective indifference to the relevant text and history, together with their staunch refusal to revisit the court’s momentous error in Slaughter-House, strongly suggested that Chip’s lifelong goal of restoring the Privileges or Immunities Clause to its rightful place as the Fourteenth Amendment’s principle font of individual rights would not be achieved any time soon—or perhaps ever. 

As a result, countless unenumerated rights, including but not limited to occupational freedom, would continue to be denied, disparaged, and/​or marginalized by a Court that often seems more interested in securing the prerogatives of government than the blessings of liberty. Chip was right to be dismayed that day.

3. Judicial engagement. Finally, Chip was among the first to recognize that judges were not merely applying different levels of scrutiny in constitutional cases, as they proclaimed, but were instead genuinely grappling with the facts and law in some cases while fully abdicating the judicial role in others. The term Chip coined to describe the former was “judicial engagement,” and he tapped me to flesh out the concept by creating IJ’s Center for Judicial Engagement and ultimately writing a book about it. 

In that book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, I sought to explain the difference between real and fake judging—engagement versus abdication—and show that there truly was a categorical difference (and not merely one of degree) between the way judges decide cases involving fundamental rights and those involving purportedly nonfundamental rights, like occupational freedom. Along the way, I realized a profound truth about constitutional adjudication, namely, that it is impossible in most cases to assess the constitutionality of the government’s actions if you don’t ask why the government is doing whatever it’s doing—i.e., what end(s) is the government pursuing with the freedom-restricting policy at issue? 

It turns out the exact same exercise of power can be constitutional or unconstitutional, depending on why it was undertaken. And if you don’t bother to ask that question—as the Supreme Court has held that judges should not in most cases—then you simply can’t determine the constitutionality of a given law or policy. Consider the following illustration, which does not appear in the book because it occurred to me later.

Imagine police are going around a given neighborhood ordering people to stay inside until further notice. They do not purport to be enforcing any law or judicial decree—instead, they’re simply insisting that people not leave their homes indefinitely, or face arrest if they do. Query: Are the police acting constitutionally or unconstitutionally?

Having presented this hypothetical to dozens of people, the most common response is that the unilateral order to stay indoors violates the Constitution. But a healthy minority of people pause, think about it, and say, “Wait, I need to know more.” And that’s exactly right—they do need to know more. 

Let’s say there’s been a terrorist bombing at a sporting event in Boston, and police have tracked the perpetrators to the neighborhood in question and are telling people to stay indoors for their safety and to make it easier to apprehend the suspects. That seems constitutional, given the combination of exigent circumstances and compelling government interest. 

But now imagine it’s forty or fifty years earlier, and the neighborhood is located somewhere in the South instead of New England. Also, there’s an election tomorrow, and the neighborhood where police are ordering people to stay indoors until further notice has a certain racial demographic. That looks more like the use of force to subvert an election, which is plainly unconstitutional. 

Again, it’s the same exercise of government power but with opposite constitutional implications depending on why it was undertaken. When judges make a genuine effort to figure out what ends the government is pursuing, that’s judicial engagement; and when they do not, that’s judicial abdication. And because the default standard of review in constitutional cases is the rational basis test—which explicitly calls for judges to base their rulings on “conceivable” justifications, including palpably insincere ones for which there is no supporting evidence—judicial engagement turns out to be the exception and not the rule in constitutional litigation.

This conception of engagement versus abdication is a powerful insight whose simple but compelling logic has garnered a growing following among scholars, activists, and even judges. And it has the potential to help tear down nearly a century of power-aggrandizing and freedom-restricting legal doctrine catalyzed by the so-called New Deal Revolution of the mid-1930s. 

Sadly, Chip will not be able to participate in the celebration should that come to pass. But if I’m still around when it does, I’m sure I won’t be the only one to tip a glass to him in a silent and grateful toast. 

The Florida Department of Health has sent a letter to Gainesville television station WCJB demanding that it cease airing a campaign ad in support of Amendment 4, a ballot initiative that would liberalize the state’s abortion law.

In the ad, “Caroline” from Tampa states that undergoing an abortion was necessary to save her life and that “Florida has now banned abortion even in cases like mine.” The state health department claims that this is an incorrect statement about the current state of Florida law, that the error might cause some women not to seek needed medical treatment in Florida, and that as a result running the ad violates Florida Statutes section 386.01, under which “the commission of any act, by an individual, municipality, organization, or corporation … by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired” constitutes a ‘sanitary nuisance.’ ”

Under Florida law, the letter says, anyone who refuses to abate a sanitary nuisance on demand—in this case by taking the ad off the air—violates criminal law and is also subject to an injunction. Anticipating the objection that the First Amendment (and the parallel clause of the Florida constitution) covers campaign speech and this ad in particular, the Florida health department adds that such a right of speech “does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida.”

It seems hard to believe that either the federal or state courts would uphold the Florida Department of Health’s assertion here of an extraordinarily broad censorship power over speech about controversial public health matters, “sanitary nuisance” or otherwise.

To begin with, contemporary Supreme Court jurisprudence makes it clear that the First Amendment protects a wide range of untruths in public discourse. (I’ll assume for the sake of argument that Florida is right about the ad containing misstatements.) While the Supreme Court has not been unanimous as to exactly where the First Amendment line should be drawn, justices have agreed that the broadest protection applies to allegedly false speech about matters of wide public concern and debate, as here. (Eugene Volokh has more on US v. Alvarez and related cases.)

There are exceptions, but none apply here. Speech about health matters in a commercial or remunerated context can be subject to legal sanction, as with misrepresentation in a drug advertisement or medical advice by a doctor to a patient that constitutes malpractice. This speech, however, is intended to persuade listeners to vote a certain way, not to buy a patent medicine. As three justices put it in Alvarez, “The point is not that there is no such thing as truth or falsity in [areas of public concern and debate] or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.”

Likewise, while broadcasters come under some distinctive federal-level legal obligations, Florida does not assert a violation of this sort, nor would it have the power to enforce federal regulations in any event. Under Florida’s theory, the state could suppress the speech even were it made in a newspaper or social media posting. And while some states continue to have laws on the books prohibiting lies during campaigns—again, not relied on by Florida in this case—the enforceability of such laws is in doubt, most especially in the case of speech about ballot measures as opposed to, say, defamatory speech about a candidate. 

I remember some on the Right arguing passionately, and I think correctly, that the First Amendment does not permit the government to suppress or censor false claims about COVID-19, even if (for example) those misstatements dissuade persons from resorting to life-saving vaccines or therapies. Indeed, in the Supreme Court case of Murthy v. Missouri (which was resolved on other grounds) the state of Florida joined an amicus brief strongly endorsing the principle that the First Amendment protects a right to say things about health that authorities consider mistaken and practically dangerous. What happened?

October has seen a number of bad headlines about the popular social media app TikTok. First, 13 states and the District of Columbia alleged that the platform harmed kids and “addicted” them to the app. Then, a Kentucky Public Radio report published documents that the company knew about the potentially negative impact and behavior of the app’s minor users, prompting senators to call for production of the documents in question. These latest claims follow an earlier FTC-led investigation for violations of the Children’s Online Privacy Protection Act (COPPA). All this arrives at a time when the company and its users attempt to rally against a law that would see TikTok face the choice of being sold or banned in the United States.

It seems both policymakers and the public are often combining the wide array of concerns about the popular app. The problem with this line of thinking is that the policy solutions and principles that apply in each case — as well as the underlying questions — are different. As a result, it is important that if there are legitimate policy issues to address, they should be targeted to respond to the concerns lest they cause more damage to other important values such as free speech, innovation, or privacy.

This last week, many of the concerns expressed by the media and policymakers are about the impact the app may have on young people. Such a conversation exists in a broader context around youth online safety. Before these concerns were expressed about TikTok, they were levied at other social media apps popular with young people at the time, including Instagram and even MySpace. As a result, policymakers are quick to respond to new allegations and use them as an opportunity to promote legislation that raises significant privacy and speech concerns.

There are specific requirements around young people’s data that are at issue in the COPPA investigation, which the law was designed to address. If TikTok violated COPPA, then there are existing remedies that can be enforced to respond to the practices and may require changes to the platform.

Many of the allegations about TikTok and young people, however, are not about the type of nuanced data collection practices covered by the Kids Online Safety Act (KOSA), or even the presence of underage users on the app. The recent discourse from the Kentucky Public Radio report and cases brought by the states has resurfaced the refrain of “social media addiction.” But the problem here is that “addiction” has and should be understood within the realm of medical diagnoses. Currently, there is not one such diagnosis accepted in the medical academy.

Again, this debate pre-dates the recent concerns about TikTok. As my Cato colleague Dr. Jeff Singer, MD wrote in a 2018 piece “Stop saying social media ‘addiction,’” “Addiction has a biopsychosocial basis with a genetic predisposition and involves neurotransmitters and interactions within reward centers of the brain. The interaction of these factors has not been established with respect to social media use.” These allegations are also not unique to TikTok. Last year, Meta faced a similar batch of lawsuits from states about the impact of its products on young people including allegations of “addiction.”

Companies continue to evolve their tools to empower parents of young users, as well as users of all ages to be more informed about their choices. These range from screen time limits on certain apps, the changing of defaults for young users, and notices more generally about screen-time usage on smartphones. This allows each family to determine what makes the most sense for them and to curate the tools to respond to their own needs.

For example, a teen on a church mission trip or traveling for a soccer tournament may need to be on her phone to communicate with family or stay entertained on a bus even if it is “late at night.” In other cases, a young person may be using social media frequently to stay in touch with far-away friends or to get help with a medical issue. Policy is unable to properly consider these nuances and instead risks eliminating beneficial uses along with the bad.

Even if it turns out that TikTok violated COPPA, or that the states win the case about its impact on young people, these issues are very different than the one underlying the calls to force TikTok to “divest or ban.” To call such issues a national security concern would indicate that this law is more directed at the type of speech on TikTok and strengthens the case that the law raises significant concerns under the First Amendment. I have more thoroughly discussed the various issues related to speech, competition, and innovation with the “divest or ban” bill in other work. But these latest allegations should emphasize the need for a principled approach. A “divest or ban” would impact the speech of the adult users of the app (who are bringing their own challenge to the law) and does not take into account that many of these allegations have been thrown at other platforms.

There are existing tools to respond to specific concerns about the use of data of underaged users under COPPA. The other allegations have also been expressed against a wide array of social media companies since social media came into existence. Our policymakers should be careful not to conflate the issues at hand and carefully examine if they are best served by policy solutions. 

As with the broader debates about tech policy reflected in these latest concerns about TikTok, policymakers should carefully consider if their proposed policy responses even address the underlying issue and might be better addressed through education, not regulation. They also should consider the longer-reaching impact on key values like speech, innovation, and privacy that could be collateral damage of such policies due to animosity towards one type of technology or one company.

Number three in our series of occasional roundups on election law and policy: 

• “Misinformation spreads after 750,000 names removed from North Carolina voter rolls. Here are the facts.” Good examination by the Raleigh News and Observer of typical viral claims that catastrophize about routine list maintenance as if it were some sort of voter suppression plot. And: “Decentralization is a security feature of our system,” interview with election expert David Becker;
• This week, Thursday, Oct. 3 at noon Eastern, Cato online book forum with John Samples of Cato and former White House counsel Bob Bauer about Bauer’s new book The Unraveling: Reflections on Politics Without Ethics and Democracy in Crisis. In-person or remote, register and watch here; 
• As with gerrymandering and turnout, former cases of partisan advantage often fade or reverse as the wheel turns: “Republicans’ Electoral College Edge, Once Seen as Ironclad, Looks to Be Fading” [Nate Cohn, New York Times; more on the Electoral College];
• New search engine optimization technique for election season: threaten to prosecute leading search engine under nonexistent federal laws for not making your results more flattering; 
• Derek Muller counters certain doomsayers: no, the presidential election is not going to be thrown into the House unless either 1) there is an electoral vote tie or 2) some electoral votes are cast for third candidates. With a followup; 
• Four things that can all be true: motor-voter arrangements in Oregon and elsewhere are prone to data entry errors, often arising from flawed online-form design; there’s no good evidence those flaws are purposeful; live election professionals may be better at conducting registrations than are state agencies with missions unrelated to elections; and if the total number of wrong ballots cast was fewer than ten, then Oregon’s was a rather lame conspiracy.